Mahoney v. City of Worcester

• Decision Date: 30 November 1928
• Citation: 163 N.E. 853,265 Mass. 94
• Parties: MAHONEY v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 94

163 N.E. 853

MAHONEY

v.CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 30, 1928.

Report from Superior Court, Worcester County; Frederic B. Greenhalge, Judge.

Action by Catherine M. Mahoney against the City of Worcester. On report from superior court, which directed verdict for defendant. Directed verdict set aside, and judgment for plaintiff rendered.

Samuel Perman and Frank P. Ryan, both of Worcester, for plaintiff.

W. C. Mellish, of Worcester, for defendant.

WAIT, J.

The plaintiff was injured on February 12, 1924, by falling on the sidewalk of Hammond street in Worcester at the abutment of a bridge carrying the tracks of a steam railroad over the street. She testified that she observed ice on the sidewalk and walked closer to the abutment to get away from the ice, and, as she approached, she saw ‘a black project of loam, gravel and cinders which extended out from the abutment to the sidewalk under the railroad bridge about 18 inches and projected about six inches in height.’ She ‘tripped, stumbled on it, and fell.’ ‘There was some project stricking up, and I tumbled my foot, and tripped and fell.’ ‘There was ice on the sidewalk, on that black loam, icy.’ Another witness testified to the presence of ‘about five or six inches of cinders, dirt, snow and ice which extended to about the middle of the sidewalk’ near the bridge, and that the plaintiff was lying on the sidewalk near the bridge ‘almost on top of the black spot.’ She told him she slipped on the ice. He testified also that ‘on the sidewalk there was snow on top of the ice, and that where the plaintiff fell it was ‘kind of lumpy’; that some of the ‘black stuff’ was frozen solid and some was not; that on top of the snow and ice he noticed cinders, but didn't know how deep a layer it was.' A witness, who had lived on the street since 1922, testified that he walked down the street twice and sometime three times a day; that in February, 1924, on the westerly sidewalk ‘there is probably about three or four inches of ice the whole winter, through both January and February, and in that ice as there is every year, there are large clinkers, some as large as your first, others half that size and all the way down, frozen sometimes partly in the ice, one end protruding’; and, further, ‘that he did not know how long any particular clinkers had been there, that he was not prepared to say any particular clinker in any particular day was there the day before or whether it came down that same day or not; that the whole sidewalk was covered with ice.’

The sidewalk was granolithic. There was no evidence of defect or want of repair, apart from such accumulation of cinders, loam, gravel, snow and ice, if any, as may have been upon it. Other evidence offered by the plaintiff justified an inference that the railroad embankment was covered with cinders which might fall or wash down upon the sidewalk, and be held by the abutments of the bridge near or upon the sidewalk.

At the close of the plaintiff's case, the judge directed a verdict for the defendant and reported the case. If the verdict was directed rightly, it is to stand; otherwise a verdict in damages for $1,000 is to be entered for the plaintiff.

A municipality is not liable ‘for an injury or damages sustained upon a public way by reason of snow or ice thereon, if the place at which the injury or damage was sustained was at the time of the accident otherwise reasonably safe and convenient for travelers.’ G. L. c....